U.S. Supreme Court Holds CERCLA Does Not Bar State Law Claims but Requires U.S. EPA Approval of Cleanups
Date: May 06, 2020
In a decision issued April 20, the U.S. Supreme Court held that the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq., (CERCLA or the Superfund statute) does not bar state law claims by 98 private residents who are seeking cleanup of their private properties that differs from a cleanup already approved by the U.S. Environmental Protection Agency (U.S. EPA).
Atlantic Richfield Company petitioned the Supreme Court for certiorari following a Montana Supreme Court decision, arguing that the state law claims should be barred because U.S. EPA had already approved a cleanup for the Anaconda Co. Smelter Superfund site, which encompasses the landowners’ properties. U.S. EPA filed an amicus brief siding with Atlantic Richfield.
In Atlantic Richfield Co. v. Christian, 590 U. S. – (2020), the court held, in a majority opinion written by Chief Justice Roberts, that private landowners in Montana could sue Atlantic Richfield in state court for state law claims such as common law nuisance, trespass and strict liability and seek restoration damages. However, the court rejected the landowners’ argument that they could begin cleanup “without even notifying EPA.” Instead, it looked to § 122(e)(6) of CERCLA, 42 U.S.C. § 9622(e)(6), which provides that when U.S. EPA or a potentially responsible party (PRP) has initiated a remedial investigation and feasibility study of a facility under CERCLA, “no [PRP] may undertake any remedial action at the facility unless such remedial action has been authorized by [U.S. EPA].” The court decided that the landowners were PRPs under CERCLA who had to get approval from U.S. EPA before they could undertake any remedial action, reasoning that “Section 122(e)(6) is one of several tools in the Act that ensure the careful development of a single EPA-led cleanup effort rather than tens of thousands of competing individual ones.”
The Superfund site at issue covers 300 square miles impacted by arsenic and lead from the Anaconda Copper Smelter near Butte, Montana, which dates back to 1884. Cleanup of the site is estimated to conclude in 2025. The landowners are seeking restoration damages that would clean up their properties to levels beyond what is required by U.S. EPA, including removal of arsenic to a level of 15 ppm, rather than the 250 ppm approved by U.S. EPA, and excavating contaminated soil deeper than U.S. EPA has required. In addition, the landowners want a groundwater treatment remedy that U.S. EPA rejected as too costly.
Atlantic Richfield argued unsuccessfully that state courts did not have jurisdiction to hear claims seeking different cleanup remedies because CERCLA § 113(b) gave federal courts exclusive jurisdiction to hear all cases arising under CERCLA. Atlantic Richfield further argued that § 113(h), which precludes challenges to approved cleanup plans, also barred state law claims for restoration costs. The court rejected these arguments, finding that state law claims for nuisance, trespass and strict liability arise under Montana law and not CERCLA. Further, the court reasoned that Congress did not intend to strip state courts of jurisdiction to hear their own state law claims.
The decision was not a complete victory for landowners because the court held they were PRPs who had to seek approval from U.S. EPA before they can begin a cleanup. The court rejected the landowners’ claims that its “interpretation of §122(e)(6) creates a permanent easement on their land, forever requiring them to get permission from EPA in Washington if they want to dig out part of their backyard to put in a sandbox for their grandchildren.” The court said that “[t]he grandchildren of Montana can rest easy” because CERCLA’s “definition of remedial action does not reach so far as to cover planting a garden, installing a lawn sprinkler, or digging a sandbox.” Justice Gorsuch sided with the landowners in his dissenting opinion, arguing the decision “amounts to a federal easement requiring land-owners to house toxic waste on their lands.” The majority rejected this permanent easement argument, stating that remedial action that requires U.S. EPA approval is narrowly defined in CERCLA and properties can be delisted by U.S. EPA when they are cleaned up.
The case is remanded to the Montana Supreme Court for further proceedings on the landowners’ state law claims against Atlantic Richfield.
One implication of the decision is that it may be more difficult under some circumstances for remediating parties to obtain finality by implementing a remedial action approved by U.S. EPA if state courts have jurisdiction to order additional restoration under state law and U.S. EPA approves the additional cleanup. While the decision creates some risk that companies will need to address site conditions on multiple fronts (with U.S. EPA and potentially in state court), it remains unclear under what circumstances U.S. EPA will approve additional cleanup ordered by state courts and what remedy property owners (who are considered PRPs) will have if U.S. EPA does not approve the cleanup. It will also be important to follow the evolution of future settlement agreements between U.S. EPA and remediating and funding parties to see if they will be drafted to account for this additional source of potential liability.
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